Pain and Suffering

Today’s topic is pain and suffering in personal injury lawsuits.

By

Michael W. Flynn

January 19, 2008

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Hello, Legal Lad. Several months ago, a car ran a stop sign and hit me while bicycling. I broke my right hand and ended up missing three months of work. In addition, I'm right-handed, so I've been limited in my daily life activities and hobbies, including taking care of my toddler. It's coming time to settle with the insurance company. How are pain and suffering settlements typically calculated? Should I expect to negotiate with their offer?

The short answer here is that there is no real way to calculate pain and suffering in lawsuits, but that most lawsuits yield 2-3 times actual damages for pain and suffering.

I was in a nasty bike accident in June, so this question is near and dear to my heart. After you are injured, there are two main categories of damages you can recover. The first category is known as “special damages,” sometimes called “actual losses.” These damages cover medical and hospital bills, heating pads, ace bandages, child care, transportation to doctor appointments, medicines, prescription drugs, physical therapy, and ambulance costs. In some circumstances, this will also include lost wages. These damages are pretty easy to calculate because you will get receipts and itemized bills for all your expenses. Any costs you actually incurred as a result of the accident can be recovered.

The second general category of damages you can recover is called “general damages.” This category can include future wages if you can’t work for a period of time or anymore at all, loss of promotion to a higher job that you might have gotten if you hadn’t been injured, inability to do housework or drive your car to go to the store, loss of ability to enjoy your hobbies, loss of your ability to have sex, and, the most common, pain and suffering. General damages are trickier to prove and are more subjective.

As a ballpark figure, you can usually recover 1-3 times the amount of special damages for pain and suffering. So, if your medical bills total $50,000, you will likely recover $50,000-$150,000 for “pain and suffering.” And yes, that is a huge range. Assigning the value of pain is arguably the most difficult job that a jury has in personal injury cases. There is no set formula under the law. It is simply what the jury feels is right, and the jury’s decision is rarely upset on appeal.

In Ryan’s case, a jury might be sympathetic to the fact that Ryan will miss out on opportunities in raising his child. Some jurors might place a high value on the emotional joy of parenting. Some jurors might consider this to be of little value. A jury might also be sympathetic to the fact that Ryan lost the use of his dominant hand, which is far more disruptive than losing the use of his other hand. There are countless considerations like this.

Ryan also asked whether he should negotiate with the insurance company. My emphatic answer is YES! In my private practice, I deal with insurance companies daily. An insurance company is trying to buy you out for the cheapest possible amount, and its first offer is always a joke. This is how insurance companies make money: by paying you as little as possible for your injuries.

This is where a lawyer can be very handy, because the lawyer knows the negotiating game, and knows how to speak to the other side. Hiring a personal injury lawyer will likely cost you at least one-third of your total recovery. That can be quite a bit of money, but it is often worth it in the end because the lawyer will almost always get you more, and will handle all the paperwork for you.

If you choose to go forward without a lawyer, then you will need to build your case as much as possible. Be sure to give the insurance company every document you can find related to the accident: the police reports, any and all receipts from expenses you incurred from your injuries, all medical bills, all physical therapist appointments, pay stubs from your job to establish exactly how much in earnings you lost, taxi receipts for trips to the physical therapist, pay stubs from your spouse’s job to show how much she lost in caring for you, day care bills for your toddler, pharmacy bills, psychologist bills, EVERYTHING. The more evidence you produce of your injury, the more the insurance company will pay you. But I repeat, NEVER take the first offer.

Good luck Ryan, and I wish you a speedy recovery.

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